THE HIGH COURT
			No. 2000 /128 JR	
			JUDICIAL REVIEW
BETWEEN
JAMES McQUAID
			APPLICANT
AND 
DISTRICT JUDGE SEAN MacBRIDE
			RESPONDENT 
AND 
THE DIRECTOR OF PUBLIC PROSECUTIONS 
			NOTICE PARTY
JUDGMENT of Mr. Justice Kearns delivered the 21st day of February, 2001.
	This an Application for an Order of Certiorari to quash Orders of the First Named Respondent made on the 8th day of February, 2000 convicting the Applicant, firstly, of dangerous driving contrary to Section 53 (1) of the Road Traffic Act 1961, as amended and, secondly, failing to stop a vehicle when being so required by a member of the Garda Siochána contrary to Section 109 (1) of the Road Traffic Act 1961, as amended.  
	There is no great dispute about the facts giving rise to the prosecution.  In the District Court, a number of Garda witnesses testified that they were operating a Garda checkpoint at Griffith Avenue in the City of Dublin at 11.45 p.m. on the 28th day of December, 1998.  About midnight a silver saloon motor car approached the checkpoint and failed to stop.  One of the Gardai on duty, Garda Brady, gave evidence that he believed the motor vehicle to be either a Nissan or a Toyota vehicle.  Evidence was given that the right brake light on the motor vehicle was observed not to be functioning.  There was further evidence that the registration number of the vehicle contained at least the letters and numbers KE and 6 and 4.  The Gardai set out in pursuit of this vehicle and were maintaining it under observation for some time.  However, contact was lost until, not very far from the location of the roadblock, a silver Nissan Maxima motor car was seen parked irregularly on the footpath outside the Cat and Cage pub.  This vehicle bore registration numbers and letters 95 KE 1641.  Garda Brady gave evidence that he went over to the vehicle and found that the rear left tyre was warm.  He also heard a ‘ticking noise’ from the engine and a ‘settling sound’.  The brake discs were noted to be quite warm.  As a result of enquiries made, it was ascertained that the Applicant, a member of the Garda Siochána with an address in Swords, in County Dublin, was the registered owner of the vehicle.  Garda Brady gave evidence that the Applicant was in fact known to him and was identified by him on entering the Cat and Cage public house.  The interval of time between the incident at the roadblock and the sighting of the Applicant’s vehicle outside the Cat and Cage pub was approximately 10 minutes.
	Sergeant MacConlogue gave evidence that he arrived at the licensed premises and spoke to the Applicant.  The Applicant gave his keys to the Sergeant to enable him inspect the vehicle.  Sergeant McConlogue gave evidence that the brake pads on the vehicle were hot, the right rear brake light was not functioning and the engine of the vehicle was making a ticking, settling sound.  Evidence was given that the Applicant later furnished information pursuant to Section 107 of the Road Traffic Act 1961, which said information included, inter alia, statements that the Applicant was the owner of the above mentioned motor vehicle, that no one was driving the car between 11.45 p.m. - 12.15 a.m. on the 28th December, 1998 that, he had not been driving the motor car since in or about 10.30 p.m. and that no one else had keys to the motor vehicle.  At all material times he stated he had been in the Cat and Cage pub.
	
	Section 107(4) of the Road Traffic Act, 1961 provides:-
	“Where a member of the Garda Síochána has reasonably grounds for believing that there has being an offence under this act involving the use of a mechanically propelled vehicle -
(a)	The owner of the vehicle shall, if required by the member, state whether he 	was or was not actually using the vehicle at the material time and, if he fails to do so, shall be guilty of an offence, 
(b)	If the owner of the vehicle states that he was not actually using it at the material time, he shall give such information as he may be required by the member to give as to the identity of the person who was actually using it at that time and, if he fails to do so, shall be guilty of an offence unless he shows to the satisfaction of the Court that he did not know and could not with reasonably diligence have ascertained who that person was”

	A memo of the interview with the Applicant was prepared by Inspector Harrington at Whitehall Garda Station and was admitted in evidence without objection.  The Applicant maintained that at the relevant time he had been in the public house, having parked his vehicle on Church Avenue, Drumcondra Road between 10.30 p.m. - 10.40 p.m. that evening. 
	There was further evidence to indicate that there was no damage to the car to suggest it had been interfered with.
	After all the States witnesses had been heard, Counsel for the Applicant, Mr. Paul O’Higgins SC, applied to have the charges dismissed on the basis that no evidence had been adduced by the State to establish the Applicant had been driving the vehicle which ignored the checkpoint on Griffith Avenue in the manner complained of in the summonses. 
	Up to this point, there is no significant variation in the accounts of what transpired before the First Named Respondent in the District Court.  
	Indeed, it is appropriate to point out that in opening this matter to the Court, Mr. Aston indicated he was not pursuing one ground of relief sought, namely, the allegation that the Respondent had questioned one witness in an unfair way so as to give rise to a perception of possible bias.  This suggestion was withdrawn.
	What is alleged, is that the Respondent unfairly failed to permit Counsel for the Applicant to conclude an Application to dismiss the charges, that he made fundamental findings of fact adverse to the Applicant before evidence had been adduced on behalf of the Applicant, and that he acted contrary to basic principles of Criminal Law in relation to the onus of proof, thereby denying the Applicant a fair hearing and failing to comply with principles of natural and constitutional justice. 
	I will deal initially with the Applicant’s version of what transpired in Court when the application for a dismiss was made at the end of the prosecution’s case.  Firstly, it is alleged that the Respondent made a number of observations, and made findings of fact and rulings on a number of matters not raised in the Application before him.  It is alleged that the Respondent stated that the Gardai had given a consistent, detailed description of the motor vehicle and that such consistency was remarkable.  It is suggested that the District Judge said that it beggared belief that the brake pad of the said vehicle could still be hot one and a half hours after being driven and that he (i.e. the Respondent) had “no doubt” that the vehicle which failed to stop at the checkpoint was the vehicle found outside the said licensed premises.  He is alleged to have further stated that the motor vehicle was travelling at a very fast speed at the checkpoint and the evidence of the Gardai in relation to the question of speed was very fair.  The Respondent is also alleged to have made further observations relating to the truthfulness of a number of prosecution witnesses. 
	At the end of what was clearly a series of exchanges between Counsel and the Respondent, Counsel for the Applicant stated that he would not be prepared to adduce evidence by or on behalf of the Applicant as it would be unreasonable to expect the Applicant to assume that the Respondent would consider the evidence in an impartial manner having regard to the findings and observations already made by the Respondent.
	The Respondent, it is alleged, then embarked on a review of his notes which lasted 30 minutes or more and again asked Senior Counsel for the Applicant whether he purposed to go in to evidence.  The Affidavit of Christopher Horrigan, Solicitor for the Applicant, contains the averment (at paragraph 13) that the learned Respondent stated that “ he had reached no conclusions in the case”.  However, Counsel for the Applicant observed that the Respondent had already expressed conclusions on central matters.
	It is further alleged that the Respondent indicated that in his view Section 107 of the Road Traffic Act 1961 shifted the burden of proof to the accused to account for the use of a motor vehicle.  It is alleged the Respondent stated that the Section gave rise to a rebuttable presumption that the owner of a motor vehicle was the driver of that vehicle in circumstances where information is given under the Section that the accused is the owner of the motor vehicle and no other person had driven the vehicle.  
	A Statement of Opposition was delivered on the 7th day of June, 2000, asserting the Respondent acted at all times within jurisdiction and denying that the Respondent failed to comply with principles of natural and constitutional justice.  It further denied that the Respondent failed to permit Counsel for the Applicant to conclude an Application to dismiss the charges or that the Respondent made fundamental findings of fact adverse to the Applicant before evidence had been adduced on behalf of the Applicant.  The Statement further denied that the Respondent made any legally erroneous interpretation of Section 107 of the Road Traffic Act, or that he held that the section gave rise to a rebuttable presumption that the owner was the driver in the circumstances alleged.
	Paragraph 12 of the Statement is as follows:-

“The Applicant’s legal advisors opted for a certain tactical course in a trial where there was some to and fro between the bench and the bar, where the Respondent did not act out of the ordinary”

	Finally, the Statement argues and contends that the Applicant’s claim is one which should be made, if at all, on appeal to the Circuit Court, and that Judicial Review should not be allowed for the tactical purpose of an Applicant avoiding going in to evidence on an appeal.  
	Mr. Seamus Cassidy, Solicitor in the Chief State Solicitors office, conducted the prosecution and swore an Affidavit in this matter on the 8th day of June, 2000 for the purpose of verifying the facts relied upon in the Statement of Opposition which of course included a denial that the Respondent had misinterpreted Section 107 or held that it gave rise to any presumption that the owner was the driver.
	In relation to the Application to dismiss, he deposes that the Respondent, in refusing the Application, recited in detail from his notes the evidence given by witnesses for the State.  Mr. Cassidy says that it was quite clear that this was to recite to the defence the extent of the case to be answered.  
	He continues:-

“It was perfectly clear that Judge MacBride was not precluding any evidence that the defence might seek to tender or adopting a firm view of the evidence, but that in the absence of a case for the defence this was prima facie what had happened.  Judge MacBride even stated that he reached no conclusions”

	What are referred to as findings of fact by the Respondent in Mr. Horrigan’s Affidavit are described by Mr. Cassidy as being nothing more than Judge MacBride’s recapitulation of the evidence presented to him in the context of dealing with an Application to dismiss.  In his view, the defence had a difficult case to meet and seized on the Respondent’s refusal of their Application and gave it a “particular, peculiar and unwarranted interpretation” for the purpose of avoiding and confronting the case that had been made out.
	A further Affidavit was sworn by Mr. Horrigan on the 4th of July, 2000, asserting that the Respondent’s conduct of the proceedings before him ensured that the Applicant was “unable” to confront the case against him.  The Affidavit further repeats the charge that the Respondent interrupted Counsel’s application and made observations which were presented as findings of fact.
	On the application of Mr. Phelan, and without objection from Mr. Aston, I decided to receive a note of the evidence taken by the First Named Respondent at District Court Number 54 Richmond Chambers, Brunswick Street, Dublin on the 8th day of February, 2000.  This note was furnished at the request of the First Named Respondent and exhibited in an Affidavit sworn by Rose O’Sullivan, District Court Clerk, on the 19th day of January, 2001.  While this is hearsay evidence, Mr. Phelan submits, and I agree, that there need be no exclusionary rule for such evidence in Judicial Review where it is relevant and where there are public policy considerations which preclude the Respondent from swearing an Affidavit.
	However, Mr. Phelan pointed out that some authority for receiving such material could be derived from the case of O’Connor-v-Judge James Carroll and Bankers Inns Limited (1999) 2 IR 160 where Barron J. held (at page 170):-

“I would however support Murphy J. where he questions the propriety of joining a Judge as a party to Judicial Review proceedings.  While it should be open to him or her to ensure through the Court Clerk or Registrar as the case may be that the basic facts are not distorted, there is no need for him or her to be a party particularly where it is inappropriate that he or she should enter the arena by swearing an Affidavit”

	  It seems to me entirely appropriate to receive such material where allegations of unfairness are made against a Judge in his conduct of a case in circumstances where the prosecuting Solicitor would have been on his feet, either making or responding to submissions, at the critical point of the hearing with which this Court is concerned.  It would seem to me to be quite wrong that the only person who could not be heard was the Judge himself in such circumstances.  However, in receiving this note, I am conscious of the fact that it is not, for reasons of public interest, in Affidavit form as that would leave the Respondent open to cross examination in relation to the judicial process. 
	The last three pages of the Judge’s notes are the only ones of relevance for present purposes. 
	The Respondent fairly points out that Mr. O’Higgins on behalf of the Applicant stated that in order to convict the Court must be satisfied beyond a reasonable doubt that there was a case to meet and that there was a fundamental question in the case as to whether James McQuaid was one of the same person as the person who failed to stop at the checkpoint.  There is no indication from the notes that the Respondent took issue with Counsel as to where the onus of proof lay.
	The Respondent points out that he then requested Mr. Cassidy to respond.  Mr. Cassidy pointed out that there was a prima facie case to answer and recited various portions of the evidence which he contended established a prima facie case for the Defendant to answer.  Again, there is no indication from the notes that the Respondent took a different view of the relevant test at that stage.
	The Respondent then continues his note as follows:-

“I as presiding Judge then delivered a reasoned reply in relation of the application of Mr. Paul O’Higgins SC.  I reviewed carefully the evidence given by all witnesses in the case in the context of an application by learned defence Counsel for a dismiss of the charge on the basis that there was insufficient evidence and that I ought to have a reasonable doubt in that there was no case for the accused to answer.  I emphasised in my deliberations that I was considering the evidence in the context that the Defendant would be obliged to go in to evidence and that in fact the Defendant would have a case to meet or call evidence on his behalf.  I particularly emphasised that it was in the context of an application for a direction that I was reviewing the evidence and having carefully considered and reviewed the evidence and referred in great detail and with clarity and in detail to the evidence given by all witnesses duly sworn before me I stated that I came to the conclusion that there was a prima facie case for the Defendant to answer and that I was satisfied beyond a reasonable doubt insofar as the evidence went that it had been established prima facie by the State that James McQuaid was the driver of the vehicle in question which drove at speed through the checkpoint without stopping and it was a matter for the Defendant to answer that case.  I stated that I had no doubt in the matter, never mind having to be satisfied beyond a reasonable doubt.”

	The account furnished by the Respondent makes no reference to the assertion by the Applicant that the responses given to the Section 107 question gave rise to a rebuttable presumption that the owner of the vehicle was the driver so as to cast an onus of proof on the Applicant to establish otherwise.  If any such view was expressed, it does not appear in the reasoning.  The responses were, of course, evidence he could take into account in deciding if there was a prima facie case.
	In this, and indeed in relation to precisely what exchanges took place between Counsel and the Respondent upon the making of the application to dismiss, the Court is left in considerable doubt and uncertainty as to the precise facts of what transpired.
	Mr. Phelan on behalf of the Respondent has submitted that the accounts of what transpired before the District Court differ and are in part contradictory.  He submits the Applicant has not made out any clear factual basis upon which the Court could act.  No notice to cross-examine had been served on Mr. Cassidy.  If there was any breach of natural justice, which he denies, the same was cured by the Respondent in inviting the Applicant to go in to evidence.  The defence chose not to go in to evidence.
	In this case, the Applicant was seeking not only to quash his conviction but to prohibit further prosecution.  Simultaneously, an appeal to the Circuit Court had been lodged on behalf of the accused.  He submits that the Applicant, having appealed, should not be allowed to proceed by way of Judicial Review.  If the Respondent was concerned with an error of law, he could have appealed by way of case stated, or sought a consultative case stated during the trial.  
	There was no clear evidence on the material before the High Court as to the application of any presumption in law being determinative.  Furthermore, the District Judge had before him sufficient evidence to convict the accused.  Essentially, the Applicant had refused to meet the prosecutions case in the District Court.
	Mr. Phelan very properly accepts that if the First Named Respondent found that the legal onus of proof had been reversed by the Respondent, then the convictions could not stand. It had not he says, been established that any such reversal occurred.  He submitted that remarks or comments about evidence made on the application to dismiss should not be seen as determinative of the case as a whole.  It was clear the Judge had not expressed any concluded view of the case.

CONCLUSION
	It is appropriate to begin by re-emphasising the essential features and purpose of Certiorari.  
	As stated by O’Higgins C. J. in the State (Abenglen Properties Limited) -v- Dublin Corporation (1982) ILRM (at p. 597):-
	“Its purpose is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction.  It is not available to correct errors or to review decisions or to make the High Court a Court of Appeal from the decisions complained of.  In addition it remains a discretionary remedy.”

	He continued shortly afterwards:-
	“In the vast majority of cases, however, a person whose legal rights have been infringed may be awarded Certiorari ex debito justitiae if he can establish any of the recognised grounds for quashing; but the Court retains a discretion to refuse his application if his conduct has been such as to disentitle him relief or, I may add, if the relief is not necessary for the protection of those rights.  For the Court to act otherwise, almost as of course, once an irregularity or defect is established in the impugned proceedings, would be to debase this great remedy.”

	While a considerable amount of the submissions in this case were directed to the existence of the right of an Appeal as an alternative remedy, it seems to me that the stage has not been reached in this case where the Court is required to decide whether that remedy of appeal should take priority in the circumstances over the remedy of Certiorari.  It is quite clear from the foregoing quotation that the Court must first be satisfied that some irregularity or defect is established in the impugned proceedings.  I find it impossible to say on the material placed before this Court whether or not there was some irregularity or defect.
	It seems to me inappropriate for this Court to intervene by way of Judicial Review in the absence of a clear and coherent factual template of what transpired in the District Court.  The contradictory nature of the accounts of what transpired in the District Court make it impossible for this Court to make clear findings of fact on many issues in this case.
	Both Mr. Cassidy’s account and that of the Respondent simply cannot be reconciled with that of Mr. Horrigan.  However, I am satisfied that the material before this Court conveys that the Respondent said a number of times that the test was a prima facie test, that the State had met that test and that he had made no conclusive decision.  Any expressions of certainty, it seems to me, related only to the case having met that prima facie threshold.  There was obviously evidence available to allow him so decide.  Virtually everything else supposedly said or not said is a matter of dispute and controversy.  
	I therefore conclude that the factual basis necessary for the Courts intervention has not been established in this case.    
	While the decision to call or not to call a witness must remain entirely a matter for Counsel, there are obvious risks and hazards associated with a decision not to call evidence in the type of situation which the Applicant alleges existed here.  To opt, in effect, for Judicial Review when an application to dismiss is refused because of a perception of pre Judgment on the part of the Judge may prove to be a judgment call which another Court may find precipitate, premature or unjustified.  
	It seems to me that very strong evidence of an improper attitude on the part of the Judge would require to exist and to be capable of being established with clarity and certainty before Counsel could safely assume, in declining to call evidence for that reason, that any ultimate decision of that Court would be quashed for failure to observe principles of natural justice.
	It is not difficult to imagine how a decision to intervene by the High Court on facts such as those alleged in this case might, quite wrongly, be interpreted in other cases as opening up a wholly undesirable line of defence where flimsily based allegations of pre Judgment and partiality could be made against judges in situations where it might be deemed unwise to call an accused as a witness in his own defence.
	I want to stress in the clearest possible terms that I am making no suggestion whatsoever that any such motive existed here or that there was any impropriety on the part of  the legal advisers of the Applicant in this case who had to make an instant decision as they saw best.   I am merely holding that the Applicant has failed to discharge the onus of establishing any defect or irregularity upon which the Court could intervene.

                                           
Signed:  Nicholas J. Kearns